Locy and Risen cases renew debate over protecting journalists’ confidential sources
By Peter Scheer
Just when you thought it was safe again for journalists to promise anonymity to confidential sources, federal judicial power is being applied with renewed enthusiasm to force reporters to out their sources.
A federal grand jury in Alexandria, VA has subpoenaed New York Times reporter James Risen to testify about his confidential sources for a chapter in his book, “State of War,” dealing with the CIA’s efforts to infiltrate Iran’s nuclear program during the Cinton and Bush administrations. Whether the grand jury is investigating Risen’s source or Risen himself (or both) is not known.
And former USA Today reporter Tony Locy has been ordered to pay crippling fines—starting at $500/day and escalating to $5,000/day—to force her to comply with an order to disclose confidential sources for articles she wrote in 2001 about Steven Hatfill, a bioterrorism expert whom federal investigators suspected was behind the anthrax mailings that killed five people.
Hatfill, who has never been charged for those crimes, sued the federal government claiming that the Justice Department and FBI, by leaking to the press information about their suspicions of him, violated his rights under the federal Privacy Act. The case is before federal judge Reggie Walton, who also presided over the prosecution of Lewis (“Scooter”) Libby.
Judge Walton is nothing if not relentless in his pursuit of reporters’ testimony. His preferred strategy is to lean on reporters to lean on their sources to sign “waivers” of confidentiality. Despite serious doubts about the voluntariness of waivers—sources have little choice but to sign, since refusal could lead to demotion or dismissal—Judge Walton used this tactic in the Libby case to force some of the most prominent journalists in Washington to testify about conversations that thay had promised never to reveal.
In the Hatfill case the judge has already succeeded in compelling Newsweek’s Michael Isikoff and Daniel Klaidman, ABC’s Brian Ross, and The Washington Post’s Allan Lengel to disclose their sources for reporting about Hatfill. Although Locy, like the other reporters, has ID’d some of her confidential sources, she says she can’t remember whether she received information from additional sources.
Judge Walton, it would appear, doesn’t believe Locy—hence the punitive fines. The judge has even forbidden USA Today or Locy’s family and friends from helping to pay the fines, the better to refresh Locy’s recollection about her sources. (The unorthodox contempt sanctions have been stayed pending Locy’s appeal to the federal court of appeals in DC.)
These cases have renewed debate over the need for a federal “shield law” that would extend to federal judicial proceedings the protection for reporters’ confidential sources that is already given, to one extent or another, by California and most states. Hatfill’s lawyer, Mark Grannis, writing in the Wall Street Journal, argues against a shield law on grounds that it would deprive the judicial system of truthful evidence, leave victims of government misbehavior without a remedy for their injuries, and indiscriminately protect both good confidential sources and bad.
The defect in Grannis’ critique is that it misconceives the purpose of a shield law. The purpose is not to do justice to Grannis’ client or other litigants. It is to serve the public’s interest in learning about the actions of government and other powerful institutions by preserving journalists’ access to sources who would not reveal what they know unless given credible assurances of confidentiality. Without protection for these sources, the public would be denied most news stories about national security matters, organized crime, and misconduct in the upper echelons of government and corporations.
For most Americans, both liberals and conservatives, that is just too high a price to pay.
Will a shield law cause unfairness to some litigants, like Hatfill? Regrettably, yes, in the same way that similar testimonial privileges for attorneys, doctors, priests and psychotherapists cause unfairness. These well-established privileges also exclude relevant, truthful evidence from court proceedings. They do so in order to protect the overriding public interest in candid communications with law clients, medical patients, penitents and people needing help for emotional problems.
Moreover, testimonial privileges–to have their intended effect–must be applied categorically, without regard to the facts of a particular case. If Grannis invokes the attorney-client privilege to withhold confidential statements that Hatfill made to him, the attorney needn’t prove to a judge that Hatfill is an honorable person, or that his interest in confidentiality outweighs other litigants’ interest in access to his statements. Categorical application of the attorney-client privilege is essential to give future clients assurance that they can speak confidentially to their lawyer.
By the same token, protection for a reporter’s confidential source must be applied categorically. The point is to give future whistleblowers assurance that a reporter’s promise of confidentiality will, in fact, be honored by the judicial system. For that reason it is irrelevant whether Locy’s confidential source is a saint or power-hungry bureaucrat intent on ruining Hatfill, or whether Locy herself is a model journalist or too trusting of her government sources.
Every subpoena to a reporter further undercuts the people’s right to know what government is doing in their name. It’s time for Congress to end this erosion in access by enacting a credible shield law.
Peter Scheer, a lawyer and journalist, is executive director of CFAC.